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Supreme Court 10 July 2015

R v Bouggas

[2015] NSWSC 914

Assault & violenceHomicide
CRIME SENTENCING MANSLAUGHTER DANGEROUS AND UNLAWFUL ACT NO INTENTION TO CAUSE FALL

Citation: R v Bouggas [2015] NSWSC 914
Court: Supreme Court of New South Wales
Date: 10 July 2015
Judge: McCallum J

Background

The offender pleaded guilty to the manslaughter of Ryan Dewhurst on the basis of a dangerous and unlawful act. The death occurred on 29 September 2013 at a Housing Department unit in Waterloo, where the offender had been drinking with the occupant and the deceased was staying. An argument broke out after the offender suspected the deceased had stolen Xanax tablets while the offender was out.

The offender followed the deceased onto the sixth-floor balcony and placed both hands on his upper torso, lifting and pushing him forward against the balcony ledge. A witness attempted to grab the deceased's legs but fell backwards. The deceased fell over the ledge and died immediately from multiple blunt force injuries. The offender had consumed methamphetamine and methadone earlier that day.

The offender had initially been charged with murder and later offered a plea to manslaughter on the basis of criminal negligence, which the Crown declined. The Crown ultimately presented a fresh indictment for manslaughter on the basis of a dangerous and unlawful act approximately one month before the scheduled murder trial, to which the offender pleaded guilty.

  • What was the appropriate sentence for manslaughter by dangerous and unlawful act in these circumstances?
  • How should the objective seriousness of the offence be assessed, including the possibility that a third party's intervention contributed to the fatal fall?
  • What weight should be given to the offender's drug use, prior criminal history, personal circumstances, and prospects of rehabilitation?
  • What discount was appropriate for the guilty plea?

Decision

McCallum J regarded the offence as one of considerable seriousness, emphasising that a human life had been unlawfully taken and that the trigger for the confrontation, a suspected theft of Xanax tablets, was entirely trivial. The offender's disproportionate response may have been influenced by drug use, but the court noted that self-induced intoxication is not a mitigating factor under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Her Honour accepted that the precise sequence of events meant it was not established beyond reasonable doubt that the offender had intentionally pushed the deceased over the balcony. The court found on the balance of probabilities that the offender did not foresee or intend the fall, and that the intervention of the witness in attempting to grab the deceased's legs was a reasonable possibility as a contributing factor. The sentencing proceeded on the basis that a reasonable person in the offender's position would have recognised an appreciable risk of serious injury, consistent with Wilson v R (1992) 174 CLR 313.

On personal circumstances, the court accepted the forensic psychologist's evidence that the offender suffers from substance misuse disorder, major depression, and anxiety, and has been deeply remorseful. His 18-month drug-free period in custody, strong family support, and employment prospects were noted in the context of rehabilitation. General deterrence was acknowledged as a sentencing purpose but was not treated as the foremost consideration in the circumstances of this case.

The court set a starting sentence of 10 years imprisonment before applying a discount for the guilty plea, reducing the total term to 8 years with a non-parole period of 5 years. The sentence was backdated to the date of arrest.

Orders Made

  • The offender was convicted of the unlawful killing of Ryan Dewhurst.
  • Sentenced to imprisonment for a total term of 8 years, comprising a non-parole period of 5 years commencing 30 September 2013 and expiring 29 September 2018, and a balance of term of 3 years expiring 29 September 2021.
  • First eligible for parole on 29 September 2018.
  • The report of Mr Tim Watson-Munro dated 21 May 2015 was directed to accompany the warrant.

Key Takeaways

  • Objective seriousness in manslaughter sentencing turns on the particular facts rather than simply the category of manslaughter charged, whether dangerous and unlawful act, criminal negligence, or otherwise.
  • Where a third party's intervening act may have contributed to a death, the sentencing court will assess the offender's actual foresight and intent on the balance of probabilities, even where the underlying unlawful act is admitted.
  • Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), self-induced intoxication is not a mitigating factor in determining the appropriate sentence, even where drug use may have distorted the offender's judgment.
  • A guilty plea entered approximately one month before a scheduled trial attracted a meaningful discount from a starting point of 10 years to a final term of 8 years, reflecting the utilitarian value of the plea even at that relatively late stage.
  • General deterrence, while a recognised statutory purpose of sentencing, was not treated as the paramount consideration in this case, consistent with the approach endorsed in R v Karnib [2015] NSWDC 84.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (including s 21A(5AA))
- Sentencing Act 1995 (WA), s 93 (referenced for comparison purposes only)

Cases:
- Wilson v R [1992] HCA 31; 174 CLR 313
- The State of Western Australia v Schmidt [2014] WASCSR 91
- R v Karnib [2015] NSWDC 84